Dialesantro v. Philadelphia Co.

Opinion by Oklady, J., The plaintiff sustained injuries, as the result of an explosion of gas which had leaked from a pipe in the street into a saloon in which he was working as a waiter. The principal element in his claim for damages was, that on account of the injuries thus received he developed tuberculosis, with which he was unquestionably suffering at the time of the trial. The accident occurred on December 16, 1905, when the plaintiff was about seventeen years of age. Some six months after the accident he returned to his home in Italy, and remained there until about a week before the trial, which began March 15, 1910. He was examined by Dr. Beatty about four months after the explosion, who testified that at that time the plaintiff complained of soreness about the chest, and some superficial wounds about the scalp were noticed; that he complained of general soreness all over; but no bones were broken and there was no [344] external evidence of any injuries to indicate an internal lesion. Dr. Staub was called as a witness for the plaintiff. He had examined him a few days before the trial, and testified that the plaintiff was weak, very much debilitated; there was a loss of muscular tone; and that he had every symptom of pulmonary tuberculosis of the right lung, whether in the first or second stage, it was impossible to state; that there were external evidences of there having been a fracture of the sixth, seventh and eighth ribs on the right side; that some of the symptoms indicated degeneration of the spinal cord, and primary symptoms of locomotor ataxia, that he was suffering with night sweats; and had an increased pulse rate with a hectic flush. No evidence of the character of the sputum was given. After a protracted examination of this physician by counsel, in an effort to connect the present condition of the plaintiff with the accident which had happened more than four years before,, he was finally asked: “Q. Is it possible for anybody, finding a tubercular patient in this condition, after an injury in the upper part of the right lung, where no direct violence had been applied at that place, is it possible for any doctor to say that it was or was not caused by this trauma or blow. Or, to put the question in another way, is it possible for anybody, no matter how skilled, to say that this boy would not have had the same tuberculosis if it had not been for the explosion? A. No, sir. Q. That is beyond human skill? A. Yes, sir.” The witness testified generally to the fact that trauma might be a predisposing cause which might tend to develop tuberculosis in a part affected, by mechanical injuries or violence, as when the ribs are broken the violence is not only applied to that part of the chest wall, but the whole side participates in it, by concussion, especially in an accident like the one described; a man falling on the floor, his whole side would be bruised when three ribs were broken, and that the part of the body most easily invaded by the tubercular bacilli is the upper right lobe of the lung. There is [345] not a scintilla of evidence to connect the plaintiff’s condition at the time of the trial with the injuries received four years previously, as a proximate cause. The learned trial judge felt it to be his duty to submit the case, weak as it was, to the jury, and in speaking of Dr. Staub, he said, “The suggestion made here by Dr. Staub, as I understand it, is, that this man was predisposed to it. That is an opinion. It is the opinion brought here of a single physician, who does not claim to be a specialist, or a special student of tuberculosis. It is for you to consider from your observation of him, the way he gave his testimony, and what he said, as to the weight you will give it.” Under the testimony, the second point, which was refused by the court, should have been affirmed. It is as follows: “Under all the pleadings and evidence in this case the plaintiff is not entitled to recover any damages for the pulmonary tuberculosis from which he is said to be suffering, because there is no evidence that such tuberculosis is the result of the injuries alleged to have been received by him in the gas explosion.” On the other phase of the case, we feel that the court committed no error in submitting that question to the jury, the contention being that the Consolidated Gas Company should have been sued and not this defendant. The two companies were so intimately associated in their management that it is quite difficult to decide where the authority of one ends, and the other begins in relation to the control, management, use, and repair of the gas pipe lines. Under the facts of this case we are not concerned about the bookkeeping and financial complications between the different corporations. Notice of the leak in the gas main was given to an officer of the Philadelphia company, who responded to that notice by sending one of their employees to repair it, and the jury could well find that the Philadelphia company had entire physical control of these lines by maintaining, inspecting and repairing them when necessary. The district in which the leak occurred was in charge of the district foreman of the [346] Philadelphia company. He said he was an employee of the Philadelphia company, and his company paid for the repairs; that the employees of that company did all the work in connection with the Consolidated Gas Company, and that they were known as employees of the Philadelphia company. The argument of the learned trial judge in refusing to enter judgment in favor of the defendant non obstante veredicto, is convincing and we feel that that phase of the case was rightly decided. To the authorities cited, may be added, Holbrook, Cabot & Rollins Corporation v. Perkins, 147 Fed. Repr. 166; United States v. Milwaukee Refrigerator Transit Co., 142 Fed. Repr. 247; Chicago Economic Fuel Gas Co. v. John Myers, 168 Ill. 139; Rahenkamp v. Traction Co., 14 Pa. Superior Ct. 635; 29 Cyc. 487. For the reasons above given the judgment is reversed and a venire facias de novo awarded.